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ELCStruck OutOriginating Summons dated 22nd March 2023· [2025] KEELC 6793 (KLR)

Osinde v Nyamwaro & another (Enviromental and Land Originating Summons E002 of 2023) [2025] KEELC 6793 (KLR)

Environment and Land Court
8 October 2025
3,114 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenyan courts cannot decide land boundary disputes until the Land Registrar has first officially fixed the boundaries in the register.

What this practically means

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Executive summary

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The Plaintiff commenced proceedings by Originating Summons dated 22nd March 2023 as registered proprietor of Nyansiongo Settlement Scheme 3193, alleging that the First and Second Defendants, proprietors of adjoining parcels 3192 and 3194, had encroached on his land by fencing. He sought declarations that both parcels exist on the map, orders for ascertainment and establishment of beacons, directions to the Land Registrar and District Surveyor Nyamira County, declarations of encroachment, restitution and re-establishment of boundaries, and costs. The First Defendant raised a Notice of Preliminary Objection dated 13th April 2023, contending that under Sections 18 and 19 of the Land Registration Act, boundary disputes must first be determined by the Land Registrar, and that the suit was an abuse of process. The Second Defendant supported the objection, invoking exhaustion of administrative remedies and noting that the Registrar's report on record did not amount to fixing of boundaries. The Plaintiff filed no submissions. Applying the Mukisa Biscuit test, D. O. Ohungo, J, held that the case was plainly a boundary dispute over registered land. Section 18(2) bars the Court from entertaining such a dispute unless boundaries have been determined in accordance with the Act. The Plaintiff had not filed registers showing fixed boundaries; the joint report of the Land Registrar and County Surveyor, with its field diagram, did not constitute fixing since there was no entry in the registers and no plan verified by the Director of Survey under Section 19(3). Relying on Kinyuni v Nyambura and Estate Sonrisa, the Court held that boundary disputes must be resolved by the Land Registrar in the first instance. The preliminary objection was upheld and the suit struck out with costs to the Defendants.

Key legal issues

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01

Whether the matter is a boundary dispute over registered land

Holding

It was a boundary dispute; the genesis of the case was the Plaintiff's allegation of encroachment by fencing, and the prayers sought ascertainment of beacons and re-establishment of boundaries

Reasoning

The Court examined the Originating Summons and supporting affidavit, noting allegations of trespass by fencing that annexed part of the Plaintiff's parcel, and prayers for ascertaining beacons and restitution of boundaries. It concluded these facts disclosed a boundary dispute over registered parcels, framing the facts against which the preliminary objection fell to be determined under the Mukisa Biscuit test.

p. 4
02

Whether the Court had jurisdiction under Section 18(2) of the Land Registration Act

Holding

The Court lacked jurisdiction because the boundaries had not been determined or fixed in accordance with Sections 18 and 19; the Registrar's report did not amount to fixing of boundaries as no register entry or Director of Survey-verified plan existed

Reasoning

Section 18(2) bars the court from entertaining boundary disputes unless boundaries have been determined under the Act. The Plaintiff did not annex registers showing fixed boundaries, only a title deed. The joint report by the Land Registrar and County Surveyor did not constitute fixing, since no entry was made in the registers and the field diagram was not a Director of Survey-verified plan under Section 19(3). The dispute must first go to the Land Registrar.

p. 6
03

Nature of a valid preliminary objection

Holding

Adopted the Mukisa Biscuit formulation: a preliminary objection must be a pure point of law argued on the assumption that the facts pleaded by the other side are correct

Reasoning

The Court recited the classic test of Law JA in Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd, that a preliminary objection consists of a point of law pleaded or arising by clear implication from the pleadings which may dispose of the suit. If upheld, it results in summary termination of the suit. The Court applied this framework before deciding the jurisdictional challenge.

p. 3

Legal principles established

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  • A court shall not entertain any action relating to a dispute as to boundaries of registered land unless the boundaries have been determined in accordance with Section 18 of the Land Registration Act
  • Cadastral maps and filed plans indicate only approximate boundaries unless the register notes that boundaries have been fixed, and proof of the fixing entry must be adduced from the onset of proceedings
  • Fixing of boundaries requires an entry in the register and, where applicable, a plan verified by the Director of Survey; a court-ordered surveyor's report alone does not fix boundaries

Court orders

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  1. 1.Notice of Preliminary Objection dated 13th April 2023 upheld
  2. 2.The suit struck out with costs to the Defendants

Authorities

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Legislation

  • Land Registration ActSections 16, 17, 18, 18(1), 18(2), 18(3), 19, 19(1), 19(2), 19(3), 20, 79(3A), 80, 86, 91(9)
  • Survey ActCap. 299
  • Civil Procedure RulesOrder 37

Cases cited (11)

  • Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] KESC 8 (KLR)
  • Samuel Njoroge Gituku & 6 Others v Kenya Rural Roads Authority & 5 Others
    [2017] eKLR
  • Maricus Otieno Okwayo v George Owenge Aluoch
    [2017] eKLR
  • Willis Ocholla v Mary Ndege
    [2016] eKLR
  • NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae)
    [2023] KESC 17 (KLR)
  • Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others
    [2019] eKLR
  • Kinyuni v Nyambura & another (Civil Appeal 163 of 2017)
    [2022] KECA 923 (KLR)
  • Mwangi Muraguri v Kamara Rukenya
    [1983] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Estate Sonrisa Ltd & another v Samuel Kamau Macharia & 2 others
    [2020] eKLR
Jurisdiction invoked
Articles of the Constitution and Land Registration Act, No. 3 of 2012, Section 18(2); suit instituted under Order 37 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Osinde v Nyamwaro & another (Enviromental and Land Originating Summons E002 of 2023) [2025] KEELC 6793 (KLR)", Case Analysis (2025). Originating Summons dated 22nd March 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6793/eng@2025-10-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.